FFRF & several other groups seek to preserve congressional ban on religious politicking

December 14, 2018

A coalition of groups, including the Freedom From Religion Foundation, is objecting to attempts to undermine the congressional prohibition on electioneering by nonprofits, including churches. This marks yet another step in FFRF’s fight to keep in place this ban.

The Johnson Amendment ensures that tax-exempt groups, including charitable nonprofits, houses of worship and foundations, do not endorse or oppose candidates for public office. Americans overwhelmingly support the existing law, in part because they do not want charities and houses of worship torn apart by partisan campaign politics.

FFRF has campaigned fiercely to keep religion and churches out of the political arena. In fact, FFRF has successfully sued the federal government to protect the Johnson Amendment on two occasions. FFRF sued the IRS in 2012 for failing to enforce it, a lawsuit that resulted in an agreement with the IRS to fix the problem. And FFRF filed suit against the IRS and President Trump last year over an executive order that he claimed would allow churches to politick. FFRF forced Justice Department lawyers to admit to the court, twice, that Trump’s order left the Johnson Amendment intact.

A broad array of organizations, which includes secular groups, religious entities and leading thinktanks, is now contacting the House of Representatives to strongly oppose the inclusion of language in H.R. 88, a tax reform package, that would repeal or weaken this law. They particularly oppose Section 407 of the proposed Retirement, Savings, and Other Tax Relief Act of 2018 and urge its removal from the legislation. This provision would gut the Johnson Amendment, transforming charitable groups into tax-exempt partisan campaign organizations.

Section 407 would allow all 501(c)(3) organizations to make statements endorsing or opposing candidates for public office so long as those statements are made in the “ordinary course” of carrying out their tax-exempt purpose and do not incur more than “de minimis incremental expenses.” Although this might appear to be a narrow exemption, it is actually so broad that it would make the Johnson Amendment nearly meaningless.

This unwise provision would allow donors to fund partisan campaign activities and receive a charitable tax deduction, a benefit that is not available to donors to candidate committees, PACs or even social welfare organizations. The Joint Committee on Taxation’s analysis of a similar proposal in 2017 projects that over 10 years donors would use this tax deduction to knowingly divert $2.1 billion from the public treasury to newly politicized “charitable” organizations that endorse or oppose political candidates.

Under the current law, which has been in place for more than six decades, charitable nonprofits, houses of worship and foundations have maintained robust free speech rights and can speak out on issues. They currently can engage in public debate and even, with a few boundaries, lobby on specific legislation. Moreover, they can — on a nonpartisan basis — host candidate forums, hold voter registration drives, encourage people to vote, help transport people to the polls and invite candidates to speak. They simply cannot endorse or oppose candidates — or use tax-exempt funds for politicking — and maintain their special tax-exempt status.

The vast majority of nonprofits support keeping the Johnson Amendment because it protects all of us from politicians’ and donors’ demands for partisan endorsements and from the diversion of charitable assets to campaign coffers. Indeed, 106 religious and denominational organizations, more than 5,800 charitable nonprofit organizations, more than 4,500 faith leaders, and state charities officials have all written to Congress to urge it to protect the Johnson Amendment.

The Johnson Amendment serves as a valuable safeguard that protects our tax-exempt organizations and our political process. Therefore, FFRF and other secular organizations firmly urge Congress to oppose any language that would weaken this vital law. And FFRF vows that it will never cease its exertions on behalf of the amendment.